Com. v. Pometti, F. ( 2017 )

J-S46004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
FRANK POMETTI
Appellant No. 253 MDA 2017
Appeal from the Order Entered January 9, 2017
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000829-2016
BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED JULY 26, 2017
Frank Pometti appeals pro se from the order denying his motion for
return of property as untimely. We affirm.
On March 26, 2016, Appellant was apprehended by police after he fled
the scene of a four-vehicle accident on North Lincoln Avenue, Lackawanna
County. Upon capture, he possessed sixty-seven individually packaged
glassine bags of heroin, two oxycodone pills, two suboxone sublingual films,
$756.00 in cash, and a cellphone. Appellant displayed signs of intoxication,
including slurred speech and pinpoint pupils, and he appeared to be falling
asleep. After being placed under arrest, Appellant refused to consent to a
blood test.
* Former Justice specially assigned to the Superior Court.
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Based on the foregoing, Appellant was charged with possession of a
controlled substance with intent to deliver, driving under the influence
(“DUI”), possession of drug paraphernalia, accidents involving damage to
unattended vehicles, failure to report an accident to police, and three counts
of possession of a controlled substance. On October 5, 2016, Appellant pled
guilty to one count of DUI, two counts of possession, and one count of
accidental damage to an unattended vehicle. The court nolle prossed the
remaining charges. On November 30, 2016, the court imposed an aggregate
sentence of six to twelve months incarceration followed by six months
probation. Appellant did not file a post-sentence motion or a notice of
appeal to this Court.
On January 9, 2017, Appellant filed a motion for return of property
pursuant to Pa.R.Crim.P. 588.1 In that motion, Appellant requested that the
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1
Rule 588 of the Rules of Criminal Procedure reads:
(A) A person aggrieved by a search and seizure, whether or not
executed pursuant to a warrant, may move for the return of
the property on the ground that he or she is entitled to lawful
possession thereof. Such motion shall be filed in the court of
common pleas for the judicial district in which the property
was seized.
(B) The judge hearing such motion shall receive evidence on any
issue of fact necessary to the decision thereon. If the motion
is granted, the property shall be restored unless the court
determines that such property is contraband, in which case
the court may order the property to be forfeited.
(Footnote Continued Next Page)
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cash and cellphone seized during his arrest be returned to him. On that
same day, the court denied Appellant’s motion as untimely. Appellant filed a
timely notice of appeal and complied with the court’s order to file a Rule
1925(b) concise statement of errors complained of on appeal. The court
authored a Rule 1925(a) opinion. This matter is now ready for our review.
Appellant’s brief does not include a concise recitation of his question
presented on appeal in violation of Pa.R.A.P. 2116. Generally, issues not
presented in the statement of questions involved are deemed waived on
appeal. Commonwealth v. Long, 786 A.2d 237, 239 n.3 (Pa.Super. 2001)
(citation omitted) (noting “generally, questions not presented in the
‘Statement of Questions Involved’ are deemed waived.”); Commonwealth
v. Bryant, 57 A.3d 191, 196 n.7 (Pa.Super. 2012) (finding weight and
sufficiency challenges waived for failure to include them in statement of
questions presented). Insofar as Appellant has failed to memorialize his
challenge to the trial court’s denial of his motion in a statement of the
question presented, we find the issue waived. Long, supra; Pa.R.A.P. 2116.
_______________________
(Footnote Continued)
(C) A motion to suppress evidence under Rule 581 may be joined
with a motion under this rule.
Pa.R.Crim.P. 588.
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Assuming, arguendo, that Appellant’s various challenges to the trial
court’s denial of his motion for return of property was properly before us, he
would not be entitled to relief. Appellant concedes that he filed his motion
for return of property at least thirty-four days after the imposition of his
sentence.2 Appellant relies on the dissenting opinions authored by Justices
Saylor and Todd in Commonwealth v. Allen, 107 A.3d 709 (Pa. 2014), for
the proposition that imposing a thirty-day limitation on filing motions for the
return of one’s property violates due process, the Controlled Substances
Forfeiture Act, and the Unclaimed Property Act. Thus, he concludes that his
property should be returned to him.
This Court is bound by the rulings of the majority position of our High
Court. In Allen, the Supreme Court noted that Rule 588 “does not directly
address the question of timing[.]” Id. at 716. It observed, however, that
the motion “must ‘be filed in the court of common pleas for the judicial
district in which the property was seized.’” Id. (citing Pa.R.Crim.P. 588(A)).
Thus, it concluded, “a return motion is timely when it is filed by an accused
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2
Appellant implies, without arguing, that the timeliness of his motion to
return property should be calculated from the date he mailed the document,
according to the prisoner mailbox rule, as opposed to the date it was
docketed in the lower court. Appellant claims he mailed the motion on
January 3, 2017, thirty-four days after he was sentenced. The document
was docketed on January 9, 2017, forty days after he was sentenced. Based
on our disposition, application of the prisoner mailbox rule does not entitle
Appellant to relief.
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in the trial court while that court retains jurisdiction, which is up to thirty
days after disposition.” Id. at 717 (emphasis added) (citing 42 Pa.C.S. §
5505 (a trial court retains jurisdiction to modify or rescind any order within
thirty days of its entry, if no appeal has been taken)). As Appellant filed his
motion for return of property after the thirty-day period during which the
trial court retained jurisdiction over his matter, it was untimely. Hence, no
relief is warranted.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2017
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